Citation Nr: 21006245 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-03 130 DATE: February 3, 2021 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a neck disability is denied. Entitlement to service connection for bilateral arm neuropathy is denied. Entitlement to service connection for a scar of the left exterior upper lip is granted. Entitlement to service connection for a respiratory disability is denied. REMANDED Entitlement to an initial compensable rating for a bilateral hearing loss disability is remanded. FINDINGS OF FACT 1. The Veteran’s low back disability did not manifest during active service; arthritis did not manifest within one year of discharge from active service; and there is no indication that the disability is causally related to active service. 2. The Veteran’s neck disability did not manifest during active service and there is no indication that the disability is causally related to active service. 3. The Veteran’s bilateral arm neuropathy did not manifest during active service and there is no indication that the disability is causally related to active service or a service-connected disability. 4. Resolving reasonable doubt in his favor, the Veteran’s scar of the left exterior upper lip is etiologically related to his active service. 5. The Veteran’s respiratory disability did not manifest during active service and there is no indication that the disability is causally related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are not met. 38 U.S.C. §§ 1101, 1112, ,1113, 1131, 1137, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.3.07, 3.309 (2019). 2. The criteria for service connection for a neck disability are not met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2019). 3. The criteria for service connection for bilateral arm neuropathy are not met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 4. The criteria for service connection for a scar of the left exterior upper lip are met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2019). 5. The criteria for service connection for a respiratory disability are not met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from September 1984 to June 1987. He had additional service in the United States Naval Reserve. This case initially came before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In February 2015, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) to schedule a Board hearing. In February 2018, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In July 2018, the Board remanded the issues for additional development. The case has since been returned to the Board for further appellate review. Service Connection – Back, Neck, and Bilateral Arms The Veteran maintains that his low back and neck disabilities are related to an assault that occurred during service in November 1986. He further asserts that his bilateral arm neuropathy is secondary to his neck and low back disabilities. The Veteran’s service treatment records indicated that he sustained a laceration to his upper left lip during a fight in November 1986. He complained of slight left shoulder pain, but the records do not indicate that there were any injuries to the back or neck during that fight. A February 1988 service treatment record indicated that the Veteran complained of a 1-day history of low back pain after lifting. The assessment was mild muscular strain. In March 1988, he was seen for a follow-up appoint for a muscle strain. It was noted that his back was still tender with bending and lifting. The assessment was muscular strain of the lower back (resolving). He was instructed to perform no heavy lifting for the remainder of the drill weekend. In December 1988, he complained of low back pain aggravated by prolonged sitting, i.e., during the drive to Florida. On examination, he had full range of motion of the thoracolumbar spine and straight leg raise testing was negative. The impression was history of lumbar strain and normal examination. No restrictions were advised. Private treatment records from the Family Physicians Group dated from November 1998 to June 2008 were unremarkable for any complaints of low back and/or neck problems. In June 2008, he reported that during a training course on incarceration, he was handcuffed for over an hour. He complained of left wrist numbness, neck pain, and back pain shortly after. A follow-up record in June 2008 noted that he complained of left hand numbness, and left arm and shoulder pain from the previous Friday. It was noted that he had decreased sensation in the left upper extremity. The diagnosis was neuropathy unlikely disc-related and more likely brachial plexus. VA examinations were conducted in March 2012. Regarding the thoracolumbar spine, the examiner noted that the Veteran had less movement than normal and pain on movement but did not provide a diagnosis or opinion regarding etiology. The examiner also noted that the Veteran had bilateral hand and feet numbness in glove and sock distributions and generalized muscle weakness, which was more consistent with neuropathy than specific hand, back, or feet problems. The examiner noted that the Veteran might benefit from a neurology workup and that his reported symptoms could also represent poor effort or malingering. Subsequent VA treatment records noted complaints of low back and neck pain radiating into his upper and lower extremities. A March 2012 X-ray of the thoracolumbar spine showed an anterior longitudinal ligament calcification at the superior margin of L4. The impression was a negative study. A May 2015 X-ray of the thoracolumbar spine showed a large anterior superior marginal osteophyte at L4 that was unchanged. May 2015 X-rays of the cervical spine showed anterior osteophytes but was otherwise negative. In an April 2016, it was noted that his past medical history included degeneration of lumbar or lumbosacral intervertebral disc. Another record noted an assessment of cervical degenerative joint disease. A November 2018 X-ray of the lumbar spine showed degenerative spurring at L4-5 with degenerative disc narrowing and minor spurring at L4-5 with degenerative disc narrowing. A December 2018 x-ray of the cervical spine showed degenerative spurring and ligamentous calcifications from C4 through C6-7. Disc spaces were maintained with no subluxation or fracture. In April 2019, his past medical history noted cervical spondylosis with root compression. The reports of July 2019 VA examinations noted diagnoses of degenerative arthritis of the thoracolumbar spine; cervical strain; peripheral neuropathy; and lumbar radiculopathy. X-rays of the thoracolumbar spine showed osteoarthritic changes at levels L2-3 and L3-4. X-rays of the cervical spine showed calcification at the anterior margin of the intervertebral discs at levels C2-C7, which was a benign finding. There were no discogenic or osteoarthritic changes. The impression was essentially normal cervical spine series. The VA examiner reviewed the claims file and considered the Veteran’s lay statements. She opined that the claimed conditions were less likely than not incurred in or caused by service. She stated that although the Veteran was treated for a strain during service, the condition was acute and a self-limiting. She noted that there was no evidence of any chronic residuals and that the records did not show any continuity of treatment following service. She indicated that osteoarthritic changes were noted on examination, which was multifactorial for which aging was the major risk factor. Regarding the cervical spine and upper extremity symptoms, the VA examiner noted that the Veteran was treated for superficial injuries resulting from an assault in 1986 but that there was no evidence of treatment for a neck condition. She also noted that there was no evidence of any continuity of symptoms following discharge. In this case, the Board finds that the evidence weighs against the claims. The evidence does not indicate that the Veteran’s low back, neck, and bilateral arm disabilities manifested during active service or within one year after separation from active service. Although the he was treated for a back strain during Reserve service in 1988, there is no evidence of any follow up treatment for the strain, which suggests the injury was acute and resolved without residuals. The first complaints and objective evidence of the claimed disabilities occurred in June 2008, over two decades later, following an injury from being handcuffed during a training course in civilian life. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, the July 2019 VA examiner’s opinions weigh against the claims. As noted above, the examiner indicated that it was less likely than not that the Veteran’s disabilities were incurred in or caused by service. The examiner considered and addressed the relevant evidence of record, the Veteran’s contentions, and provided rationale for her opinion. For those reasons, the Board finds the VA examiner’s opinion significantly probative. Furthermore, there are no medical opinions to the contrary. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has also considered the lay evidence. The Veteran is competent to describe what he has personally observed or experienced; however, to the extent his reports conflict with the contemporaneous medical evidence, the Board does not find his statements credible. Furthermore, the ultimate question of etiology in this case extends beyond the immediately observable cause-and-effect relationship and is beyond the competence of lay witnesses. For these reasons, the Board finds that the preponderance of the evidence is against the claims and entitlement to service connection for low back, neck, and bilateral arm disabilities is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service Connection – Mouth The Veteran maintains that he sustained an injury to his mouth during an assault that occurred during service in November 1986. Service treatment records indicated that he was struck in the face by a fist during a fight. There was a laceration to the exterior lip and a small laceration to the inside of the lip with slight swelling. The laceration to the exterior lip was 3/8 inches in length, 1/8 inches deep, and 1/8 inches wide. The laceration inside of the lip was the size of a marble. The laceration was closed with sutures. The report of a February 2012 VA dental examination indicated that the Veteran had routine dental problems that were not the result of being struck in the face during service. The report of a September 2020 VA examination indicated that the Veteran had a laceration to the left exterior upper lip, which measured 0.0 cm x 0.025 cm. The examiner opined that the claimed condition was less likely than not incurred in or caused by service. As rationale, the examiner noted that the Veteran had a small, barely visible scar to the exterior left upper lip and that he denied any residuals or disabilities due to the laceration. He complained of difficulty chewing and opening his mouth wide his mouth wide due to facial trauma sustained in the altercation, yet the examiner pointed out that there was no evidence showing treatment for a mouth condition since discharge from active service. In this case, the evidence indicates that the Veteran sustained a laceration to his exterior lip during active service, which required sutures. He currently has a small scar of the left upper exterior lip. No other mouth disabilities have been shown. Although the VA examiner opined that the claimed condition was less likely than not related to service, that opinion seemed to be based on the Veteran’s report that he had no disabling effects from the laceration rather than addressing the etiology of the scar itself. The Board notes that there is no evidence of any intercurrent causes for the lip scar. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for a left upper exterior lip scar is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Service Connection – Respiratory The Veteran maintains that his current respiratory disability was incurred in or is related to service. He states that during service he had to grind metal surfaces and was exposed to paint, rust, dust, and insulated pipes. The Veteran’s service treatment records are unremarkable for any complaints, treatment, or diagnoses related to a respiratory disability. A January 1998 private treatment record noted that the Veteran had a history of asthma. In July 2000, it was noted that he had a history of rhinitis. An August 2001 record noted that the Veteran complained of chest pains and shortness of breath after cutting the grass. A note was made to rule out asthma. It was noted that he had a large calcified left hilar nodule. In December 2001, it was noted that he had a calcified pulmonary nodule of the left lung. A November 2004 private treatment record noted that the Veteran complained of chest pain and shortness of breath for two days. The diagnosis was viral infection. A May 2015 VA treatment record indicated that the Veteran reported a history of possible asthma since service in 1985. He stated that he had a dry cough that was worse at night, during the Spring, when it was very cold outside, and when he walked fast. He stated that he used an albuterol nebulizer once or twice a week and had an inhaler prescribed by his primary care physician but could not afford to fill the prescription. The assessment was possible diagnoses of asthma or asbestosis. In August 2015, he reported experiencing shortness of breath while cutting the grass or running. In June 2017, he requested a work restriction due to asthma. It was noted that he did not have a diagnosis of asthma and that VA did not issue work restrictions. In November 2018, he reported no recent asthma. He stated that he used his inhaler four times a month or less. The report of a July 2019 VA examination indicated that the Veteran reported experiencing respiratory problems during service in 1985. He stated he routinely sanded, scraped, and removed old dried up paint and rust from surfaces during service. The examiner noted diagnoses of asthma and histoplasmosis. The examiner reviewed the claims file and opined that the claimed conditions were less likely than not incurred in or caused by active service. The examiner noted that the Veteran’s service treatment records did not show any objective evidence or treatment of a respiratory condition during service and that there were no supporting treatment records showing continuity of his reported symptoms following discharge. In this case, the Board finds that the evidence weighs against the claim. There is no evidence that a respiratory disability manifested during service or for many years thereafter. The first complaints and objective evidence of the claimed disability occurred in January 1998, over a decade later. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson, 230 F.3d at 1333. Furthermore, the July 2019 VA examiner’s opinion weighs against the claim. As noted above, the examiner indicated that it was less likely than not that the Veteran’s respiratory disabilities were incurred in or caused by service. The examiner considered and addressed the relevant evidence of record, the Veteran’s contentions, and provided rationale for her opinion. For those reasons, the Board finds the VA examiner’s opinion significantly probative. Furthermore, there are no medical opinions to the contrary. Barr, 21 Vet. App. 303; Stefl, 21 Vet. App. 120; Nieves-Rodriguez, 22 Vet. App. 295. The Board has also considered the lay evidence. The Veteran is competent to describe what he has personally observed or experienced; however, to the extent his reports conflict with the contemporaneous medical evidence, the Board does not find his statements credible. Furthermore, the ultimate question of etiology in this case extends beyond the immediately observable cause-and-effect relationship and is beyond the competence of lay witnesses. For these reasons, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for respiratory disability is not warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND The Board finds that additional development is necessary before the claim for an increased rating for a bilateral hearing loss disability is decided. A March 2017 VA treatment record noted that results of an audiology evaluation were viewable in the Computerized Patient Records System (CPRS) under the tools menu in the Audiology Image Display module; however, that record has not been associated with the claims file. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See 38 C.F.R. § 3.159(c)(2) (2019); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, a remand is required to obtain any outstanding VA audiology evaluations. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. The AOJ should also obtain any outstanding audiology evaluations located in CPRS under tools menu in the Audiology Image Display module, including the August 2017 audiology evaluation. 2. Then, readjudicate the claim remaining on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow an appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mishalanie, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.